LAW IN THE NEWS: The Aaron Hernandez case

It is often said that a little knowledge is a dangerous thing. Nowhere was the truth of that statement more evident than in the frenzied media coverage preceding the recent arrest of former Patriot’s tight end Aaron Hernandez. Media outlets desperate to fill the news void created by tight-lipped criminal investigator...

It is often said that a little knowledge is a dangerous thing. Nowhere was the truth of that statement more evident than in the frenzied media coverage preceding the recent arrest of former Patriot’s tight end Aaron Hernandez. Media outlets desperate to fill the news void created by tight-lipped criminal investigators went to absurd lengths to create stories where none existed – to the point of reporting (complete with helicopter footage) that Hernandez stopped to get gas on his way home from Gillette Stadium. At the same time, “expert” legal analysts freely opined that Hernandez was guilty of obstructing justice notwithstanding their ignorance of the facts surrounding the investigation and their apparent failure even to consider the law governing obstruction of justice in Massachusetts.

The supposed basis for the (as it turned out) non-existent obstruction of justice charge was Hernandez’s alleged destruction of his cell phone and the hard drive of his home security system. Believe it or not, in Massachusetts this conduct does not, in and of itself, constitute obstruction of justice. Many states have enacted general obstruction of justice statutes (similar to the federal statute) criminalizing any conduct undertaken with the intent to hinder a criminal investigation or prosecution. Massachusetts has not. The Massachusetts statute is narrowly tailored to cover only certain specific conduct, such as intimidating or bribing witnesses, and lying to criminal investigators. Destroying your own personal property, even with the intent to hinder an investigation does not, without more, violate the Massachusetts statute. While Massachusetts also recognizes a common law crime of obstruction of justice, it has been limited by the courts to cases where a defendant knowingly interferes with the testimony of a witness in a judicial proceeding.

If true, Hernandez’s destruction of his cell phone and security system might have supported a charge of accessory after the fact to murder. But that crime too requires proof of more than just the destruction of evidence with the intent to hinder a criminal investigation. The prosecution must prove that the defendant (i) was aware of the “substantial facts” surrounding the murder, (ii) knew the identity of the perpetrator and (iii) intentionally took some affirmative action designed to assist the perpetrator in avoiding or escaping detention, arrest, trial or punishment.

Of course, Hernandez’s recent arrest on first-degree murder and firearm charges renders moot any discussion of his status as an accessory after the fact. He is now charged with the real thing, leaving the media to debate the strength of the “circumstantial” case against him. Two things are worth noting on this point. First, the common perception that a case is weak if it is circumstantial is flat out wrong. Eyewitnesses can either misperceive things or have motives to lie. Circumstances have no bias. They are what they are; and with each additional circumstance pointing to guilt, it gets harder and harder for a defendant to come up with a story consistent with innocence that explains away all of the circumstances. Second, if you listened closely to the prosecutor’s recitation of evidence during Hernandez’s recent arraignment, you’ll realize that the case against him is not circumstantial. Among other things, the prosecutor referenced conversation that took place in Hernandez’s car on the trip to Boston to pick up the victim. Unless there was a bug in the car, the only way for the prosecutor to obtain such evidence is from someone who was there. The prosecution is not required to disclose its witnesses at this early stage in the proceedings, but you can bet the ranch that the disclosure is coming.

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The author is a Hingham resident, former federal prosecutor and a Director of the Boston law firm of Goulston & Storrs where he practices white-collar criminal defense and business litigation.